Citation Nr: 21068037 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-48 173A DATE: November 8, 2021 REMANDED Entitlement to an increased rating for residuals of a stroke, to include balance instability, abnormal gait, left arm muscle weakness, chronic fatigue, and long- and short-term memory loss, and an acquired psychiatric disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period between August 27, 2015 and September 18, 2015, and between July 31, 2017 and September 27, 2020, is remanded. REASONS FOR REMAND The Board notes at the outset that the issues on appeal were characterized as entitlement to service connection for specific residuals of the Veteran's service-connected stroke. Which is currently rated as noncompensable under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8009, which states that a minimum 10 percent rating is warranted, and all residuals are to be rated separately. Given the nature of the Veteran's claim, it is better characterized as an increased rating claim for residuals of a stroke, rather than one for service connection. This interpretation allows a more comprehensive evaluation of the Veteran's disability. Therefore, the issue has been recharacterized accordingly. 1. Entitlement to an increased rating for residuals of a stroke, to include balance instability, abnormal gait, left arm muscle weakness, chronic fatigue, and long- and short-term memory loss, and an acquired psychiatric disorder is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period between August 27, 2015 and September 18, 2015, and between July 31, 2017 and September 27, 2020, is remanded. Residuals of a Stroke The Veteran is seeking a rating for his claimed stroke residuals. He was last provided with a VA examination in 2017, wherein the examiner opined that the Veteran's claimed residual symptoms were not the result of his service-connected stroke. The Board finds this examination to be inadequate for the purpose of evaluating the Veteran's claims as they stand currently. The examiner did not sufficiently address the Veteran's lay statements and there is no indication as to the level of severity of the Veteran's claimed residual symptoms whether they are related to his stroke or not. As such, the Board finds that a new examination is necessary to evaluate the Veteran's claimed stroke residuals. TDIU The Veteran has not explicitly raised the issue of entitlement to a TDIU, however, on a statement attached to his October 2016 notice of disagreement he specifically stated that the disabilities developed since his stroke (August 27, 2015) preclude him from seeking any type of employment. Thus, the Board finds that a claim for TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As an initial matter the Board notes that the Veteran specifically noted that he believes he became unemployable following his August 27, 2015 stroke. Additionally, the Veteran is assigned 100 percent rating for his stroke from September 18, 2015 to July 31, 2017, and a 100 percent rating for diabetic nephropathy beginning on September 27, 2020. Thus, for those periods, the issue of TDIU is moot as the Veteran has a single disability at the maximum schedular rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). Entitlement to a TDIU is inextricably intertwined with the Veteran's increased rating claim for an acquired psychiatric disorder, thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. The Regional Office (RO) should invite the Veteran to submit any additional evidence in support of his claims. Obtain any treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should provide the Veteran with a VA examination with an appropriate clinician to evaluate the current severity of his claimed stroke residuals. The claims folder must be made available to and be reviewed by any examiner(s). All tests deemed necessary should be conducted and the results reported in detail. For any musculoskeletal residuals, the full range of motion testing must be performed in both active and passive motion, in weightbearing and non-weightbearing with range of motion measurements of the opposite undamaged joint. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups for each disability. The examiner should estimate any additional loss of motion to the best of their ability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner should address and discuss the Veteran's lay statements regarding his claimed stroke residuals. If it is not possible to provide a specific measurement without speculation, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following the completion of the above development, the RO should undertake any additional development deemed necessary. The RO should then adjudicate the Veteran's claims for a higher rating for stroke residuals, and for entitlement to TDIU. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor